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THE RECALL OF JUDGES. 


In a Government such as ours, campaigns of education ever must 
be waged. 

The people are an always-changing body, under constantly varying 
conditions and influences; and many have no acquaintance whatever 
with our Constitution, or know even that we have one. 

In discussing, here, the recall of judges, I do so—if I may adopt the 
language of Franklin—“only from a persuasion that I am right, and 
from a sense of duty.” 

It seems to me that, in a matter of this kind, it behooves us to look 
well within ourselves; to test ourselves; to search the uttermost depth 
of our souls—to see whether, if we should decide to lower the barriers 
which the wise framers of the Constitution erected against themselves 
and others of their day and against those who should come after them, 
we should not do so, not because they are not wise barriers, but merely 
because they are barriers. 

The recall is, in my judgment, neither wise nor necessary. 

First. As to the necessity of the recall: 

Many of those who advocate it do so upon a misconception of the 
functions of the courts. 

They fail to draw the distinction, that, while, no doubt, the people 
know better what they want the law to be, the courts must, necessarily 
know better what the law is; and what the law is, is what the courts 
are called upon to decide. 

Under our theory of government the courts are not intended to be 
leaders of new-thought movements or creators of progressive legisla¬ 
tion or of any legislation. These are functions of the legislative 
branch of the Government, under the approval of the Executive. 
The courts are to tell us the law as it is, not as they think the people 
want it, nor, often, as they themselves personally would like to have it. 

Many others who advocate the recall fail to bear in mind that we 
already have the remedy of impeachment, and that this is designed to 
meet dishonesty in a court in any form. 

All we have to do is to 'prove the dishonesty. 

That, perhaps, is the reason some prefer the recall to impeachment; but 
would it be fair to a judge to impeach him except by (and is it fair to 
recall him without) orderly procedure and upon sworn testimony, and 
would it be fair to ourselves to permit ourselves to impeach (or to 
recall) him without proof and with less care than we demand of him in 
the exercise of his functions as a judge ? Is there one rule for him £,s 
a judge and another for us in passing upon him? Is he not equally 
an American citizen, and is he not, therefore, entitled to at least the 
same rights which we claim for litigants before him ? 



4 


THE RECALL OF JUDGES. 


If a court is merely mistaken—honestly mistaken—as to the mean¬ 
ing of a law, the remedy is neither the recall nor impeachment. 

If the decision can not be corrected by appeal, the remedy is the 
enactment of a clarifying act, making the meaning so clear that it 
can not be questioned. So, also, where the words are too uncertain 
or vague to be enforced or are capable of two meanings. 

If a court is not mistaken, but the law as construed by the court is 
not what the people want, still again the remedy is neither the recall 
nor impeachment; it is an act such as the people want, amending, 
or in place of, the preceding act. 

If an act is unconstitutional, then it is the duty of the court so to 
declare it; and the American people ought to be the last to blame the 
court for doing its duty. What else ought a court to do ? 

If the people do not like the Constitution, then that should be 
amended; and there is a way to do even that. 

As to whether ‘ ‘ the process of impeachment * * * ought to be 

simplified ,” as claimed by Attorney General Wickersham, is an 
entirely different question; but, for myself, it seems to me that 
impeachment ought not to be a remedy too easily availed of. 

Second. As to the wisdom of the recall: 

I see many reasons why the recall would not be wise: 

(1) The recall would change our form of government. 

(a) The independence of the judiciary would be destroyed. 

Ellsworth, on January 7, 1788, evidenced, evidently, the feeling 
that must have been in the Constitutional Convention as to this inde¬ 
pendence when he said before the Connecticut Convention, upon the 
question of the ratification of the Constitution: 

If the general legislature should at any time overleap their limits, the judicial 
department is a constitutional check. If the United States go beyond their powers, if 
they make a law which the Constitution does not authorize, it is void; and the judicial 
power, the national judges, who to secure their impartiality, are to be made independent, 
will declare it to be void. On the other hand, if the States go beyond their limits, if 
they make a law which is a usurpation upon the Federal Government the law is void 
and upright, independent judges will declare it so. 

Indeed, George Mason’s copy of the Bill of Rights as (he says) 
“drawn and presented by” him to the Virginia Convention of 1776 
declares “that the legislative and executive powers of the States 
should be separate and distinct from the judiciary”; and the plan 
submitted by Randolph, May 29, 1787, to the Constitutional Con¬ 
vention says: 

3. Resd. that the National Legislature ought to consist of two branches. 
******* 

7. Resd. that a National Executive be instituted * * * 

9. Resd. that a National Judiciary be established * * * 

And Madison, writing to John Tyler, tells us (what, in substance, 
he had stated in a letter to Noah Webster of October 12, 1804): 

The Resolutions proposed by him [Randolph], were the result of a Consultation 
among the Deputies, the whole number, seven being present. The part which Virga 
had borne in bringg abt. the Convention, suggested the Idea that some such initiative 
step might be expected from her Deputation; and Mr. Randolph was designed for the 
task. 

It was certainly with the intention of securing this independence of 
the judiciary that the convention provided that the judges should 
hold their offices during good behavior and have salaries; and it is 


\ 


THE RECALL OF JUDGES. 5 

significant that both provisions were adopted nem. con. The con¬ 
vention provided also that their salaries should not be reduced while 
in office. 

(b) Therefore, the judiciary, as a check upon the legislative and 
executive branches, would, in effect, be abolished. 

(c) And the amendments to the Constitution, made to prevent the 
majority riding rough-shod over the rights of the minority, and of the 
individual, would, in effect, become a nullity; because the majority 
would be the arbiter of their own actions. 

The right to worship as one pleases, or not at all; the right of free 
speech and free press; the right to be free from unreasonable searches 
and seizures; the right of trial by jury; the right to “due process of 
law;” and all those other rights the protection of which represent the 
distant marks upon the road of civilization, to show that we are 
civilized, would cease to be rights, resting solely, as they would, 
upon the whim of the majority. 

If this is what the people want, certainly they have the power to 
have it; but they ought to understand what it means, and they ought 
to understand that, if they want it, they can have it only by amending 
the Constitution or overriding it. 

If it is amended, it must be amended as the Constitution itself 
provides. 

It can not be amended by a majority vote only. 

Indeed, no constitution so amendable would be a constitution at all. 

(2) If the recall exists, will not less care necessarily be taken in the 
selection of judges by the people or by the Executive? 

(3) Besides, if judges are to be subject to the recall, will the bench 
then, as now, be considered the goal of honor to which men capable 
of earning far more in their profession constantly aspire? Will the 
best men be content, not only with the lesser compensation, but with 
such a precarious honor ? 

(4) If a judge should determine the rights of American citizens 
without sworn testimony; if a judge should decide a case between 
American citizens upon what hearsay testimony stated was in the 
record, rather than upon what was in it, would the American people 
consider that he was bettering the judicial system and making progress 
toward more perfect government? 

Why, then, the recall of judges? 

Is it possible to distribute to every voter upon the question of the 
recall a copy of the record in the case? Who would pay for it? 
And, if not, would not the voters sit in judgment on the judge without 
knowing what was in the record upon which the judge made his 
decision, and, therefore, themselves make a decision not upon any 
sworn testimony nor upon the record ? 

Are the voters to rely upon the newspapers? Are the reports in 
the newspapers always accurate, always unprejudiced ? Could the 
newspapers give the entire record anyway ? Would they if they could ? 
Upon which newspaper are they to rely ? 

And should the voters, without hearing the carefully prepared 
arguments, pro and con, by counsel paid to present each the best 
arguments for his side of the case, overrule one who heard them? 
Is this giving the litigants a proper hearing ? 

(5) And, even were it possible to distribute to every voter a 
copy of the record, and even of the arguments of counsel, would 


6 


THE RECALL OF JUDGES. 


the voter—for the most part untrained-—be more likely to decide 
the case properly than one trained by study and experience? If 
so, why should our lawyers study law; why do we prefer a practi¬ 
tioner of many trials to a lawyer’s clerk? 

If so, why do laymen go to lawyers for legal advice ? 

If to be an expert means nothing, why not recall the doctors, the 
engineers, the pilots ? 

If we have a link stronger than any link of a chain of links, it 
will be stronger than that chain. 

An hundred thousand people voting that a judge is wrong does 
not make him wrong. He may be the single strong link against the 
chain of links each weaker than himself. 

(6) Is it not enough that the judge has to determine what is 
the law and its application to the record before him without having 
to determine also whether his decision is likely to meet with popular 
approval ? 

Is a man ordinarily more likely to decide a case according to 
his best judgment if he has to decide both questions than if he has 
to decide but one ? 

Even if he is perfectly honest, and brave beyond question, must 
not his mind at least be distracted ? 

Must there not be raised even in his own mind a doubt—which 
first he must dispel, if he can—whether he is really unprejudiced in 
his judgment ? 

I can see the probable effect upon at least three classes of men: 

( a ) Many a man is brave, many a man is honest, under all circum¬ 
stances, except when his act might deprive those he loves of the 
things they need. 

(b) What attorney of experience has not at some time been satisfied 
that the judge decided the case wrongly simply because he was upon 
terms of intimacy with one of the counsel and, for fear lest he might 
be thought to be prejudiced in his favor, went out of his way to rule 
against him? How much more likely is a judge of similar tempera¬ 
ment to make it more than plain—even if, in doing so, he really com¬ 
mit error—that he is not prejudiced for fear of the recall. 

(c) At the same time the dishonest judge, the self-serving judge, 
or the weak judge will try to follow what he believes to be the popular 
will. 

Just think of a judiciary with their ears ever to the ground to hear the 
sound of the majority’s voice! 

Of course a brave and honest man will decide a case as he believes 
to be right, regardless of his own interests, and of course we want 
only such men upon the bench- 

But we are not expecting the millenium. 

We are dealing with humanity as its exists and as it always will 
exist. 

We are dealing with the question of the best results as a whole in a 
government of men. 

On June 2, 1787, in the convention, Wilson read for Franklin, who 
was 11 very sensible of the effect of age on his memory,” and had, there¬ 
fore, reduced his observations to writing: 

Sir, there are two passions which have a powerful influence on the affairs of men. 
These are ambition and avarice—the love of power and the love of money. 



THE RECALL OF JUDGES. 


7 


Can it be doubted that in the majority of cases judges will decide 
more as they should if they have no fear for those they love or for 
themselves ? 

(7) What possible respect will or can the people have for any of 
the courts, if all are subject to recall ? What respect will there be for 
any of their j udgments or decrees ? Will they not have to be enforced 
by the strong arm of authority rather than by the peaceful acquies¬ 
cence of a law-abiding people ? Chaos instead of civilization. 

(8) And, supposing a judge believes himself to be right, is he to leave 
the duties of the bench and try to sustain such belief before the peo¬ 
ple? If he does, will he not be derelict to his duties as a judge? If 
he does not, may he not be wrongfully recalled, because the people 
do not understand? 

And who is to pay the expenses of the judge’s campaign for vindica¬ 
tion? 

(9) Does not the recall make it possible for any other aspirant for 
the position held by the judge, a defeated or unappointed candidate, 
to institute the recall, with all the intrigues, misrepresentations, 
acrimony, and abuse that so often accompany political contests ? 

Even if unsuccessful, the life of the judge might be continually 
harassed and his public usefulness destroyed. 

(10) Then there is the expense of the elections for the recall to be 
considered and the effect of irregular and extra elections upon the 
people, with the possibility, and even probability, that many, who 
would attend a regular election, would not attend at all at a special 
election. 

(11) Many a judge, new to his position, makes errors which, later, 
no one regrets as much as he himself. If he is recalled, and another 
judge, also new to his position, takes his place, why should not other 
errors, alike due to inexperience, be committed ? 

Wisdom comes with experience. 

How is one to get it if he is recalled ? 

(12) And suppose the majority is wrong? 

I venture that, if the recall had existed, John Marshall would have 
been recalled as early as Marbury v. Madison (1 Cr., 137), in the Febru¬ 
ary term, 1803. 

The American people are standing at the edge of a precipice. 

Will they topple over? 

If they adopt the recall, they might almost as well abolish the 
courts. If the courts can not decide what is the law, but are subject 
to the recall, why have them ? 

Or are the courts to be left to decide private suits, but not those 
involving the rights of the public ? 

Where is the line to be drawn ? 

It is impossible, I venture to say, to draw it. 

Why this line anyway ? 

Or are the courts to be recalled only when they declare an act 
unconstitutional ? Or when they fail to do so ? Or when ? 

Supposing the act really is unconstitutional ?. 

Are we to abandon the Constitution, or override it without amend¬ 
ing it ? ,..,11 

The American people must make up their minds whether to con¬ 
tinue that for which the English-speaking people for centuries have 




8 


THE EEC ALL OF JUDGES. 



0 012 320 839 0 


fought, and to advance conservatively and cert* 
to the dark ages and be barbarians. 

The three branches of our Government—the executive, the legis¬ 
lative, and the judicial, each independent and coordinate—has been 
the glory of our land. Why abandon them? Sanctioned by the 
framers of the Constitution, tested by the years, is the independent 
judiciary to go for naught? 

The judiciary will no longer be independent if it is subject to the 
same voice which elects the legislative and the executive branches 
of the Government. There will no longer be any check upon either 
the legislative or the executive branches of the Government. 

The American people must make up their minds also whether they 
are ready to acknowledge to the rest of the world that the Govern¬ 
ment founded upon the Constitution has failed in so signal a regard, 
and that no longer should the struggling monarchies of the older 
civilizations look to the New World for the solution of their problems. 
Nor must they be surprised if the enemies of republican forms of 
government see in their action a weakness, in their inability to suffer 
restraint, which foretells at no distant day the knell of these United 
States. 

I submit with all earnestness that, if the indvidual judge is inclined 
to do wrong, or is arrogant, the press and public opinion ordinarily 
are a sufficient check, and that, if they go too far, impeachment is a 
cure. 

As long as we have faith, as long as we honor the bench, the judge 
who does not do what he believes to be right will be the exception and 
not the rule. That is all anyone can ask of any judge—or of anyone 
else. 

It rests with us to choose, directly or indirectly, only those about 
whose capacities and dispositions we know considerable, and whose 
past bespeaks a firm and honest future, to be judges. That is the 
time for us to exercise the “recall”—before there is anyone to be 
recalled. We can then exercise the “recall” of an individual without 
affecting the system. 

When we cease to honor the bench the bench will cease to be an 
honor to us. 

What was said by Chief Justice White on January 29, 1912, is 
worthy to sink deep into the minds of the American people. He 
described the Supreme Court of the United States as— 

* * * so noble in conception and yet so simple in execution; so ordinary in its 
incidents and yet so majestic as a servant of the whole people; so weak and yet so 
strong, became founded upon the affection of all the people and depending for its existence 
upon their continued support. 

John H. Hazelton, 

Member of the New York Bar , 

Author of“ The Declaration of Independence: Its History.” 


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